Rapporteur: Mr Martin HAAS (Switzerland)
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EXPLANATORY MEMORANDUM
1. The Congress’s decision to examine the role of mediators/ombudsmen at local and regional level stems from the observation that relations between the public authorities and citizens have become increasingly complex. Nowadays, the state acts more and more as a provider of a wide range of services. Administrative bodies have grown in number and in power and have widened their fields of activity. Their actions are now subject to a sometimes complex system of legal provisions. Consequently, citizens may at times experience a sense of helplessness, if not distrust, towards this bureaucratic machinery.
2. In order to respond to this feeling, which is extremely widespread in some countries, and to improve the administration of the public authorities, a number of countries, regions and towns have taken the step of setting up ombudsmen’s offices. The Congress therefore thought it worthwhile to undertake an analysis of the possibilities of bringing citizens closer to the public authorities through this institution.
3. To that end, from 13 to 15 November 1997, the Congress held an international conference in Messina (Italy), bringing together local and regional ombudsmen from the Council of Europe member states. In accordance with the wishes of those attending the conference, the Congress considered that a survey of the role of the mediator should be launched. The survey took the form of a comparative analysis of the different approaches to mediation adopted by local and regional ombudsmen in Europe.
4. A positive view of the ombudsman as an institution emerged from the analysis; consequently, it was proposed that the institution be reinforced where it already existed and introduced in countries which did not yet have this means of protecting citizens. The draft recommendation, draft resolution and the present report are thus intended to help achieve these objectives by facilitating the task of local and regional authorities wishing to set up ombudsmen’s offices. Accordingly, the draft resolution, which is being put to a vote before the Congress, lays down principles, contained in its appendix, governing the institution of mediator at local and regional level, offering potential users (local and regional authorities wishing to introduce this institution at their level) the possibility of choosing approaches that are best suited to their own circumstances and aims.
5. At its meeting on 22 February 1999, the working group examined the content of the draft recommendation and the draft resolution. The observations made by members of the group were incorporated into the amended versions of these two texts which were subsequently forwarded to the members of the working group for their final unanimous approval.
6. In this activity, the working group has profited from contributions by the experts Claudio Zanghì, President of INTERCENTER, who was also the instigator of the Messina Conference, and Giorgio De Sabbata, Ombudsmen for the Marches Region and a former member of the Congress. We would like to thank them for their work and for the excellent conclusions they drew from their research into the different forms of mediation practised at local and regional level throughout Europe.
7. Although recourse to the ombudsman is not an effective remedy in the legal and technical sense of the term, it should nevertheless be regarded as a genuine means of action which is readily accessible to the citizen, sometimes at little cost or free of charge. The ombudsman’s opinions may be a decisive factor in the development of principles and rules governing the actions of administrative authorities and the conduct of public officials.
8. As we have observed, the administrative authorities may be responsible for errors and sometimes oversights (ie maladministration) which, however, are not sufficient to be deemed “unlawful” and cannot always be challenged in the courts. We have examined the ombudsman’s role in this context.
9. Moreover, the standard forms of judicial review do not always make it possible to act with the necessary efficiency and speed. Hence there is a growing demand for supervision procedures which are rapid, flexible, simple and less expensive. Key aspects of the role of the ombudsman, as the working group’s analysis concludes, are the simple and inexpensive procedures involved, the speed with which recommendations on the adoption of remedial measures are made, and the ombudsman’s technical ability and impartiality.
10. Working on the assumption that there is a direct link between the public authorities and the ombudsman, it is easier to understand why this mediation institution has been set up at different levels: European, national, regional and local.
11. There is a strong need for an ombudsman particularly at the level of local and regional authorities. As we all know, there is a very advanced degree of local and regional self-government in some countries; the central authorities are not authorised to deal with certain matters which fall exclusively within the field of competence of regional or municipal authorities. Where this is the case, the existence of a single national ombudsman will not cover relations between the individual and the municipality, the individual and the province, the individual and the region, etc. In those circumstances, unless there are explicit provisions to the contrary, the national authorities and, consequently, the national ombudsman, will have no legal means of attending to problems caused by maladministration at local or regional level. The need to introduce ombudsmen at local and regional level therefore also depends on the degree of local self-government in the country in question.
12. In this connection, it should be emphasised that over the past fifty years, the structure of the modern state has evolved considerably. A number of states which were originally highly centralised and unified have now become decentralised to a large extent, often granting both administrative and legislative autonomy and setting up bodies of elected representatives.
13. The CLRAE working group based its conclusions on the analysis of the characteristics of the role of the ombudsman as observed in Council of Europe member states. Of the 22 countries that have appointed a national ombudsman, six have appointed other ombudsmen at local or regional level (Austria, Belgium, the Netherlands, Spain, Switzerland and the United Kingdom) and one, Italy, which does not yet have a national ombudsman, has several at local and regional level. Other countries have appointed ombudsmen, again at local level, but with their powers restricted to a particular field, for example health and telecommunications in Finland, and the environment and telecommunications in Portugal. Finally, some other countries already have a national ombudsman and have granted him or her the necessary powers to act at local level as well (Cyprus, Denmark, Iceland and Lithuania).
14. It is worth pointing out that the term “mediator/ombudsman”, as used in the draft recommendation and draft resolution, is to be understood in its broad sense. The title given to this institution for citizen protection varies from country to country according to national traditions: People’s Attorney (Austria), Protector of Justice (Portugal), Protector of Citizens’ Rights (Slovenia), Commissioner for Citizens’ Rights (Poland), Parliamentary Commissioner for Administration (the United Kingdom), Médiateur (France), Médiateur Communal (Belgium), Civil Defender (Italy), People’s Defender (Spain), Sindic de Greuges (Catalonia), Justicia Mayor (Aragon), Ararteko (Basque Country), Valedor do Pobo (Galicia), Diputado del Comun (Canary Islands) and Procurador del Comun (Castile and León).
15. Discussions within the CLRAE working group led to the conclusion that the appointment of an ombudsman is justified at all levels of territorial authority with autonomous administrative power which may affect the rights and interests of individuals.
16. Generally speaking, the institution concerned, as understood in this context, was conceived for the purpose of improving the decisions, actions and conduct of the national, local or regional authorities, in order to prevent or at least reduce the possibility of citizens’ rights and interests being harmed. In view of the different situations observed, it is not always easy to define and circumscribe the ombudsman’s powers and functions. Nevertheless, on the basis of the survey results, the principles appended to the draft resolution set out the functions of the ombudsman regarded as essential by the consultants and members of the working group.
17. Firstly, mention ought to be made of the ombudsman’s duties in dealing with maladministration. This concept should be taken to include delays, irregularities, negligence, unjustified conduct and lack of impartiality, transparency, efficiency, integrity, etc.
18. It is also worthwhile to define the general purpose of mediation. Whereas the courts are required to settle disputes, the ombudsman must seek a solution designed to protect the rights, interests or specific situation of the individual. In order to achieve this aim, possible avenues such as mediation, compromise or good offices should in some cases be explored rather than the rigorous application of the rule of law that is typical of judicial action.
19. It is very important to point out that dialogue, mediation and the quest for the best possible solution are the main functions of ombudsmen at local and regional level. They may also have direct knowledge of the persons concerned and the mutual confidence thus established may make their task easier and produce better results.
20. Ombudsmen also perform the function of providing advice to citizens. Before embarking upon any action, whether a court action, an administrative action or any other action, citizens should be in a position to know their own rights and the means of action available.
21. Since they are familiar with cases of maladministration, ombudsmen are well placed to tackle not only the effects of maladministration but sometimes also its causes. The knowledge and experience acquired in this field may often enable them to suggest suitable remedies to avoid a repetition of unacceptable situations. Ombudsmen may address their suggestions, exhortations and proposals to the local and regional authorities if the problem relates to the organisation and functioning of their offices, procedure or the interpretation of the relevant measures. The same action may be taken in relation to the legislative authorities where, for example, a proposal to amend the existing legislation is put forward.
22. With regard to the means of action available to the ombudsman, the working group considered that ombudsmen’s powers go beyond traditional models for eliminating illegalities and initiating disciplinary proceedings. The ombudsman’s action essentially involves fostering proper administration and suggesting any ways in which the authorities might improve their integrity, efficiency and productivity and allow citizens full enjoyment of their rights. We consider the ombudsman to be a modern means of promoting the proper functioning of the public authorities. If the mediation institution were seen as another supervisory organ, it would merely add to the traditional bodies whose limitations have been exposed, whereas the ombudsman’s essential task is to supplement the powers of these bodies while being wider in scope.
23. The survey conducted by the Congress also revealed that some ombudsmen deplore the inadequacy of their powers of effective intervention: a body armed with blunt weapons consisting of recommendations, appeals or exhortations is likely to end up being ignored. However, the fact that the acts or initiatives adopted by the ombudsman are not legally binding is not seen as a disadvantage or as an inconvenience; on the contrary, if ombudsmen were given really incisive powers and were thus subject to rigid procedures, they would become a new hierarchical authority and thereby lose all the very flexibility that makes them distinctive. If ombudsmen were permitted to issue rulings on disputes, they would then be performing the functions of a judge. We feel that ombudsmen should be more flexible and enjoy more room for manoeuvre than judges.
24. We hope that these principles will form a suitable basis for local and regional authorities wishing to introduce this institution at their respective levels. We also hope that the work that has been carried out will provide a means of supporting and promoting an institution with the potential to help satisfy citizens’ expectations more fully.